Monday, February 25, 2019

Balkanization on Balkinization: A Skeptical View of Information Fiduciaries

David Pozen

As readers of this blog know, Jack Balkin has been developing a theory of “information fiduciaries” for the past five years or so. The theory is motivated by the observation that ordinary people are enormously vulnerable to and dependent on the leading online platforms—Facebook, Google, Twitter, Uber, and the like. To mitigate this vulnerability and ensure these companies do not betray the trust people place in them, Balkin urges that we draw on principles of fiduciary obligation. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, accountants, and estate managers vis-à-vis their patients and clients, so too should it impose such duties on Facebook, Google, Twitter, and Uber vis-à-vis their end users.

Balkin’s theory has been enormously influential. Scholars, advocates, and journalists have hailed it as a solution that can “make Facebook and Google behave” without crushing the tech industry. Mark Zuckerberg has sounded supportive notes. Lawmakers from both parties have expressed increasing interest; the Data Care Act would inscribe Balkin’s scholarship in the U.S. Code. The conventional wisdom, as Frank Pasquale expressed it in a recent essay, is that the information-fiduciary proposal is not just a much-needed breakthrough but “hard to challenge.”

This Balkinization contributor dissents. Uneasy about the fiduciary turn that Balkin has inspired, Lina Khan and I have written an essay arguing that the information-fiduciary proposal is flawed—likely beyond repair—on conceptual, legal, and normative grounds. A first draft of our essay is available here.* As Khan and I summarize our argument in the abstract:

This Essay seeks to disrupt the emerging consensus by identifying a number of lurking tensions and ambiguities in the theory of information fiduciaries, as well as a number of reasons to doubt the theory’s capacity to resolve them satisfactorily. Although we agree with Balkin that the harms stemming from dominant online platforms call for legal intervention, we question whether the concept of information fiduciaries is an adequate or apt response to the problems of information insecurity that he stresses, much less to more fundamental problems associated with outsized market share and business models built on pervasive surveillance. We also call attention to the potential costs of adopting an information-fiduciary framework—a framework that, we fear, invites an enervating complacency toward online platforms’ structural power and a premature abandonment of more robust visions of public regulation.

Balkin kindly invited me to write on this blog a while back, and he has been nothing but gracious to me as an editor (of sorts) and colleague. He is also a famously generous mentor to scores of younger scholars. It is a mark of my esteem for Balkin that I feel completely confident he will not be upset by this pushback, and on the contrary will relish the critical engagement with his ideas.

* For readers who would prefer an extremely condensed graphic-novel-style rendering of our paper to the densely footnoted version, Cornell Tech’s Strategic Designer in Residence Gary Zamchick created this image following a talk I gave there recently. For the record, I did not wear a purple top hat at the talk itself; otherwise, this is pretty much how it went down.

Illustration by Gary Zamchick

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